Introduction

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Discretion

328. The Appeals Chamber recognises that intelligence and good education have been considered to be possible aggravating factors.[1] This does not mean, however, that these factors should only be considered aggravating factors. The Appeals Chamber reiterates that whether certain factors going to a convicted person’s character constitute mitigating or aggravating factors depends largely on the particular circumstances of each case.[2] The Appeals Chamber previously underlined that “[c]aution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different”.[3] […].

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

182. Under Rule 90(F) of the Rules, the Trial Chamber “shall exercise control over the mode and order of interrogating witnesses and presenting evidence so as to: (i) make the interrogation and presentation effective for the ascertainment of the truth; and (ii) avoid needless consumption of time”. The Appeals Chamber recalls that the Trial Chamber has discretion to determine the modalities of examination-in-chief, cross-examination and re-examination so as to accord with the purposes of Rule 90(F). In this regard, it should be emphasised that:

the Presiding Trial Judge is presumed to have been performing, on behalf of the Trial Chamber, his duty to exercise sufficient control over the process of examination and cross-examination of witnesses, and that in this respect, it is the duty of the Trial Chamber and of the Presiding Judge, in particular, to ensure that cross-examination is not impeded by useless and irrelevant questions.[1]

When addressing a submission concerning the modalities of examination, cross-examination or re-examination of witnesses, the Appeals Chamber must ascertain whether the Trial Chamber properly exercised its discretion and, if not, whether the accused’s defence was substantially affected.[2]

416. For the conclusion that the Appellant’s medical background could be cited as an aggravating factor, the Trial Chamber relied on what the Trial Chambers respectively held in the Kayishema and Ruzindana and Ntakirutimana Trial Judgements.[1] The Appeals Chamber does not, however, find that the two ICTR cases are persuasive precedents for the present case. In the Kayishema and Ruzindana Trial Judgement, the Trial Chamber simply stated that as a medical doctor Kayishema owed a duty to the community and that this constituted an aggravating factor[2] but did not give any explanation as to the legal basis for its conclusion. The Trial Chamber in Ntakirutimana held that:

the Chamber notes that Gérard Ntakirutimana acknowledges that he departed the hospital leaving the Tutsi patients behind. He explained that the gendarmes had directed him to leave because of increasing lack of security. The Chamber is aware that the security situation was difficult and that, for instance, Oscar Giordano left a few days earlier. However, in the Chamber’s view it is difficult to imagine why the Accused was at particular risk, compared with the remaining persons. According to his own explanation, he did not return to the hospital to inquire as to the condition of patients and staff. The overall situation leaves the Chamber with the impression that the Accused simply abandoned the Tutsi patients. This behaviour is not in conformity with the general picture painted by the Defence of the Accused as a medical doctor who cared for his patients.[3]

This statement of the Trial Chamber as to the duty of a medical doctor appears to have been made in a context which is completely different from that of the case before this Appeals Chamber. Thus, while in that context the conclusion of the Trial Chamber may well be persuasive, the same is not true when the same reasoning is transplanted in a completely different context such as the case of the Appellant. Caution is needed when relying as a legal basis on statements made by Trial Chambers in the context of cases and circumstances that are wholly different. The Appeals Chamber considers that these statements by themselves provide too tenuous a basis for holding that the previous background of the Accused, and the ethical duties stemming from it, are an aggravating factor in international criminal law. While the Trial Chamber has discretion in determining factors in aggravation, the Trial Chamber must provide convincing reasons for its choice of factors. As the basis on which the Trial Chamber found the existence of this aggravating factor is rather tenuous, the Appeals Chamber finds that the Trial Chamber committed a discernible error in identifying the professional background of the Appellant as an aggravating factor. This error impacted on the Trial Chamber’s determination of the sentence and therefore the Appeals Chamber will take it into account when revising the Appellant’s sentence.

1096. The Appeals Chamber recalls that the choice of remedy lies within its discretion, in light of Article 25 of the Statute.[1] Accordingly, in the interests of fairness to Stanišić and Župljanin, balanced with considerations of public interest and the administration of justice, and taking into account the nature of the offences and the circumstances of the case at hand, the Appeals Chamber finds it appropriate to refrain from entering new convictions on appeal for these crimes.[2]